Strasbourg marks a sea- change in tolerance

by

25 January 2013

The decision in Eweida and Others v. the United
Kingdom was a significant advance, suggests Mark
Hill

THE judgment by the European Court of Human Rights in the four
conjoined applications on freedom of religion was always going to
provoke intense academic discussion and hot-headed polemic -
whatever the Court's reasoning.

I was addressing a conference in Ghana on the day in question,
at which many of my fellow speakers shared their personal
experiences of atrocities perpetrated in the name of religion. This
put in perspective the overblown rhetoric of some of the litigants
and their supporters, and their complaints of state-sponsored
persecution of Christians in the United Kingdom.

Irrespective of the actual disposal of the four applications,
the determination provides a lucid and coherent statement of the
principles of freedom of conscience and religion enshrined in
Article 9 of the European Convention on Human Rights. It is one of
the most vital elements that go to make up the identity of
believers, but also, the judgment reminds us, it constitutes a
"precious asset for atheists, agnostics and the unconcerned",
because "the pluralism indissociable from a democratic society
depends on it."

THE judgment articulates and enlarges the right to freedom of
religion in three important particulars, however. First, the Court
makes plain that, provided a religious view demonstrates a certain
level of cogency, seriousness, cohesion, and importance, the
government's duty of neutrality "is incompatible with any power on
the state's part to assess the legitimacy of religious beliefs or
the way those beliefs are expressed". Domestic courts will
therefore be spared the impossible task of adjudicating upon the
veracity of religious doctrine.

Second, the Strasbourg Court has declared an end to the emergent
practice of protecting only those religious practices that are
doctrinally mandated. It acknowledges that liturgical acts are
self-evidently outward expressions of belief, but that
manifestation should be more widely interpreted.

As Sir Nicolas Bratza, the British judge, put it in his joint
opinion: "We have no doubt that the link between the visible
wearing of a cross (being the principal symbol of Christianity) and
the faith to which the applicant adheres is sufficiently strong to
amount to a manifestation of her religious belief."

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It was the apparent denigration of the cross by the English
judiciary, dismissing it as no more than a fashion accessory worn
as a matter of choice, that generated indignation. The explicit
disavowal of so narrow an interpretation should end the contention
that less favourable treatment is afforded to Christians.

IT IS the third element that is most important. The judgment
lays to rest a principle which had been gaining currency in both
Strasbourg and domestic jurisprudence that the ability to resign
from a job acts as a guarantee of religious freedom.

For the future, UK courts will have to find an interference in
the right to manifest one's religion even when an employee could
take another job where the regime is less restrictive. The onus
will then be on the employer to justify the interference as
reasonable and proportionate.

There is a perceptible sea change in the legal approach, and
Judge Bratza boldly, and rightly, states that earlier decisions of
the Strasbourg Court to the contrary should not be followed. It is
in defining the boundaries on the limitations of the Article 9
freedom where the working out of the complex, and often highly
political, balancing of competing rights ought always to have
been.

It must therefore be gratifying for the two Church of England
bishops who intervened in the proceedings, together with Premier
Christian Radio, that the arguments they and others advanced on
each of these three matters now find expression in the new approach
to freedom of religion.

HOW this more open and generous interpretation works itself out
in practice remains to be seen. Every case is fact-specific, and it
is unwise to generalise from disposal of each of the four
applications, not least because of the wide margin of appreciation
afforded to state legislatures and courts. Future litigation in the
UK courts (which is inevitable) will be carefully analysed.

What of the law of unintended consequences? In making good its
worthy statements of principle on the accommodation of
manifestations of religious belief in the workplace, the Court
granted relief in only one of the four cases. The majority chose to
allow the application of Nadia Eweida, the British Airways
operative.

In substituting its own discretion for that of the domestic
courts, it was largely influenced by the fact that BA subsequently
revised its uniform policy to accommodate Ms Eweida. This, the
Court concluded, demonstrated that the earlier prohibition "was not
of crucial importance".

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Condemning the one employer who had listened, reconsidered, and
adjusted its policy might have a chilling effect on human re-
sources.

Litigation such as this is thankfully rare. Every day, sensible
employers and reasonable staff achieve workable solutions
consensually. Fears of adverse inferences being drawn by courts and
tribunals might make employers less inclined in the future to make
the pragmatic adjustments which hitherto have been done
routinely.

This would be an unfortunate side effect of the otherwise
successful outcome of the litigation in its furtherance of
religious toleration.

Professor Mark Hill QC practises at Francis Taylor Building,
Inner Temple, and is an Honorary Professor at the Centre for Law
and Religion, Cardiff University. He acted for the Bishop of
Chester, the (then) Bishop of Blackburn, and Premier Christian
Radio, who were afforded intervener status in the
litigation.